Atkinson v. District of Columbia ( 2022 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 21-CV-415
MARJORIE ATKINSON, APPELLANT,
v.
DISTRICT OF COLUMBIA, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(CAV-503-21)
(Hon. Heidi M. Pasichow, Trial Judge)
(Submitted April 7, 2022 Decided September 1, 2022)
Geoffrey A. Allen for appellant.
Karl A. Racine, Attorney General for the District of Columbia, Loren L.
AliKhan, Solicitor General at the time the brief was submitted, Caroline S. Van Zile,
Principal Deputy Solicitor General, and Carl J. Schifferle, Deputy Solicitor General,
for appellee.
Before GLICKMAN, BECKWITH, and MCLEESE, Associate Judges.
MCLEESE, Associate Judge: Appellant Marjorie Atkinson appeals from an
order dismissing her complaint for failure to state a claim. We vacate and remand.
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I.
Ms. Atkinson’s amended complaint alleges a claim of negligence and a claim
of gross negligence. In support of those claims, the complaint alleges the following.
A vehicle driven by a Metropolitan Police Department (MPD) officer hit Ms.
Atkinson’s car while Ms. Atkinson was parking the car in a parking lane. The MPD
vehicle was unmarked and was occupied by police officers and a robbery victim.
The officers were canvassing the area looking for the robber. The MPD vehicle was
travelling between ten and fifteen miles per hour and did not have its lights or sirens
on. The driver of the MPD vehicle completely failed to look where he was going,
failed to correct his course after Ms. Atkinson honked her horn, and veered into Ms.
Atkinson’s lane. The collision seriously injured Ms. Atkinson and damaged her car.
The trial court dismissed the complaint for failure to state a claim. With
respect to the negligence claim, the trial court relied on D.C. Code § 2-412, which
provides that “in the case of a claim arising out of the operation of an emergency
vehicle on an emergency run[,] the District shall be liable only for gross negligence.”
The trial court concluded that the allegations in the complaint established that the
MPD vehicle was on an emergency run. With respect to gross negligence, the trial
court concluded that “fail[ing] to control [a] vehicle while going [ten to fifteen] miles
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per hour in pursuit of an active robbery simply does not rise to the level of gross
negligence.”
II.
We review de novo the dismissal of a complaint for failure to state a claim.
Grayson v. AT & T Corp., 15 A.3d 219, 228 (D.C. 2011) (en banc). “We accept the
allegations of the complaint as true, and construe all facts and inferences in favor of
the plaintiff.” Id. (brackets and internal quotation marks omitted). To survive a
motion to dismiss, “[t]he complaint need only contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Scott v.
FedChoice Fed. Credit Union, 274 A.3d 318, 322 (D.C. 2022) (internal quotation
marks omitted).
A. Emergency Run
We agree with Ms. Atkinson that the trial court erred in dismissing the
negligence count on the ground that the allegations in the complaint establish as a
matter of law that the MPD vehicle was on an emergency run.
For current purposes, “emergency run” has an explicit definition:
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“Emergency run” means the movement of a District-
owned vehicle, by direction of the operator . . . , under
circumstances which lead the operator . . . to believe that
such vehicle should proceed expeditiously upon a
particular mission or to a designated location for the
purpose of dealing with a supposed . . . emergency, an
alleged violation of a statute or regulation, or other
incident requiring emergency action . . . .
D.C. Code § 2-411(4).
“[T]he legislature . . . meant the concept of an emergency run . . . to be
understood broadly.” Duggan v. District of Columbia, 884 A.2d 661, 663 (D.C.
2005) (en banc per curiam) (internal quotation marks omitted). The concept requires
“a genuine—an honestly held—belief by the operator that [the operator] should
proceed expeditiously on a mission or to a location in response to a supposed
emergency.” Id. (brackets and internal quotation marks omitted).
We conclude that the allegations of the complaint do not establish as a matter
of law that the MPD vehicle was on an emergency run, because the complaint makes
no allegation about whether the officer driving the MPD vehicle had a subjective
belief that he should proceed expeditiously in response to an emergency.
We are not persuaded by the District of Columbia’s arguments to the contrary.
First, the District of Columbia argues that the complaint lacks factual allegations
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sufficient to support a conclusion that the MPD vehicle was not on an emergency
run. That is true. The complaint is not required to contain such allegations, however,
because the emergency-run doctrine operates as a defense. See D.C. Code § 2-412(waiving “defense of governmental immunity” in negligence cases arising from
operation of vehicles by employees of District of Columbia, except that District of
Columbia is liable only for gross negligence in cases involving emergency run).
“[A] plaintiff's failure to anticipate and rebut affirmative defenses in [the] complaint
is not a sufficient basis for . . . dismissal.” Falconi-Sachs v. LPF Senate Square,
LLC, 142 A.3d 550, 559 (D.C. 2016).
Second, the District of Columbia cites two cases that it suggests are factually
comparable to this case, District of Columbia v. Walker, 689 A.2d 40 (D.C. 1997),
and Dickson v. District of Columbia, 938 A.2d 688 (D.C. 2007) (per curiam). In our
view, neither case supports the District of Columbia’s argument. In Walker, the
plaintiff did not dispute that the collision at issue occurred during an emergency run.
689 A.2d at 44 n.6, 50. Moreover, the collision in Walker arose in circumstances
quite different from the circumstances thus far alleged in the present case: the
officers in Walker were in hot pursuit of a stolen car being driven by a juvenile. Id.
at 43, 50.
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In Dickson, the MPD officer involved in the collision testified at a deposition
that he had responded immediately to a traffic stop because he had been trained to
do so as a matter of officer safety. 938 A.2d at 689. The plaintiff provided no
contrary evidence. Id. This court affirmed the trial court’s grant of summary
judgment to the District of Columbia, concluding that the evidence of the officer’s
belief “was so one-sided that the District had to prevail as a matter of law.” Id. at
690 (brackets and internal quotation marks omitted). This case differs from Dickson
in two critical respects. First, there was direct evidence of the officer’s subjective
reasoning in Dickson, whereas no such evidence has yet been presented in this case.
Second, Dickson involved summary judgment, and thus the issue was what a
reasonable juror could conclude about the emergency-run defense based on the
evidence presented by the parties. Id. The present case, however, arises on a motion
to dismiss, and the question whether the District of Columbia could establish such a
defense is therefore premature. Falconi-Sachs, 142 A.3d at 559.
B. Gross Negligence
We also agree with Ms. Atkinson that the trial court erred in dismissing the
claim of gross negligence. Gross negligence “requires such an extreme deviation
from the ordinary standard of care as to support a finding of wanton, willful and
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reckless disregard or conscious indifference for the rights and safety of others.”
Tillery v. District of Columbia, 227 A.3d 147, 151 (D.C. 2020) (internal quotation
marks omitted). “[T]he extreme nature of the conduct may be shown by
demonstrating that the actor acted in disregard of a risk so obvious that the actor
must be taken to be aware of it and so great as to make it highly probable that harm
would follow.” Id. (brackets and internal quotation marks omitted).
Because this case arises on a motion to dismiss, the question is whether the
complaint alleges facts sufficient “to state a claim to relief that is plausible on its
face.” Scott, 274 A.3d at 322 (internal quotation marks omitted). Although we view
this as a close question, we hold that the claim of gross negligence suffices under the
“fairly minimal pleading requirements” in this jurisdiction. Solers, Inc. v. Doe, 977
A.2d 941, 948 (D.C. 2009).
The complaint alleges that the driver of the MPD vehicle completely failed to
look where he was going, failed to correct his course after Ms. Atkinson honked her
horn, and veered into Ms. Atkinson’s lane. In our view, those factual allegations
make it at least plausible that the driver acted in disregard of an obvious risk of
serious injury.
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In arguing that dismissal was warranted, the District of Columbia relies on
two cases in which this court concluded that the plaintiff had failed to establish gross
negligence: Walker, 689 A.2d at 42-49, and District of Columbia v. Henderson, 710
A.2d 874, 875-77 (D.C. 1998). In those cases, however, the court was not reviewing
a motion to dismiss and determining whether a complaint stated a plausible claim
for relief. Walker, 689 A.2d at 42-49; Henderson, 710 A.2d at 875-77. Rather, the
court was reviewing the evidence introduced at trial, to determine whether a
reasonable fact-finder could find gross negligence based on that evidence. Walker,
689 A.2d at 42-49; Henderson, 710 A.2d at 875-77. Walker and Henderson
therefore do not support a conclusion that dismissal was warranted in this case.
For the foregoing reasons, we vacate the judgment of the Superior Court and
remand the case for further proceedings.
So ordered.